TITLE: International Conference on Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Convention on Biological Diversity (Nairobi, 6-7 February 1999): The Nairobi Statement AUTHOR: Accepted by conference participants as a *non-consensus* document PUBLICATION: Submitted to BIO-IPR DATE: February 1999 SOURCE: African Centre for Technology Studies, details below. International Conference Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Convention on Biological Diversity Nairobi, Kenya February 6-7, 1999 Organized by the African Centre for Technology Studies (ACTS) in conjunction with the United Nations Environment Programme (UNEP) THE NAIROBI STATEMENT (NOT A CONSENSUS DOCUMENT) Introduction The 'International Conference on Trade Related Aspects of Intellectual Property Rights and the Convention on Biological Diversity' was organized by the African Centre for Technology Studies (ACTS) in collaboration with the United Nations Environment Programme (UNEP). It was held at UNEP's headquarters in Nairobi, Kenya (February 6-7, 1999) to explore the interaction between the two international agreements. Its specific objectives were to: * Raise awareness of the interaction between the TRIPS Agreement of the World Trade Organization (WTO) and the Convention on Biological Diversity (CBD); * Examine the extent to which the implementation of Article 27(3)(b) of the TRIPS Agreement may undermine goals and principles of the CBD; * Identify specific ways and means of harmonizing the operations of Article 27(3)(b) of the TRIPS Agreement and the CBD; and * Generate options for the 1999 review of Article 27(3)(b) of the TRIPS Agreement. The Conference brought together a diverse group of policy-makers, researchers, private sector members, leading scholars, NGOs, representatives of ministries for the environment, the Secretariat of the Convention on Biological Diversity, representatives of the World Intellectual Property Organization (WIPO), WTO, and a variety of other institutions. The conference was a dialogue among the various stakeholders. It provided, perhaps for the first time, an opportunity for many African government officials and NGOs as well as the private sector to get an understanding of the evolution, nature and complexities of TRIPS and its relationship with the CBD. Given the diversity of views expressed by many participants and the complexity of the issues, this statement does not in any way contain and/or represent consensus. The Conference deliberated and elaborated on the following issues: the evolution of TRIPS, norm creation under the CBD, the role and perspectives of international institutions, the expansion of intellectual property protection regimes to cover biological resources, the capacity of developing countries to influence policy agendas within the WTO, access to and transfer of new technologies, access to and exchange of genetic resources, and private sector investment in research and development of food technologies, medicines and the relationship of that to sustainable development. The Conference made a wide range of observations including the following: * Many developing countries, particularly those of Africa are going through severe structural adjustment processes and are concerned that not enough has been done under Article 67 of TRIPS to provide them with technical assistance for the implementation of the agreement; * Members of the WTO may have underestimated the time it takes to build genuine institutional capacities with respect to developing countries fulfilling their obligations under TRIPS; * That the review of Article 27(3)(b) is taking place only four years after the creation of an entirely new multilateral trade regime; * That members of the WTO, most of which are also members of the CBD, should give themselves time to develop national policy, legislative models and codes of best practice under the CBD and TRIPS so that the interaction between Article 27 (3)(b) and the CBD can be more meaningfully evaluated; * That members of the WTO will have the opportunity to revisit Article 27(3)(b) in future reviews of TRIPS; * That international norm-creating bodies that have responsibilities for developing policies that affect the control, custody and conservation of biological resources, all have an obligation to allow for an open and deliberate consideration of their policies and norm-creating activities; and * That states consider ways in which to build constructive linkage and policy dialogue between the WTO, the Food and Agriculture Organization (FAO), the Union for the Protection of Plant Varieties (UPOV), WIPO, UNEP and the Secretariat for the Convention on Biological Diversity. Background There are growing intense debates about the relationships between TRIPS and the CBD. These debates are part of the wider concerns regarding trade and environment nexus. They are really about the control, custody and conservation of the world's biological resources. This control, custody and conservation has become a matter of pervasive concern amongst peoples of the world. The debates are being conducted in a number of fora, including the Conference of Parties to the Convention on Biological Diversity (COPs), TRIPS Council, WTO's Trade and Environment Committee, FAO and UPOV. They have recently been stimulated by a wide range of factors including the increasing use of biotechnologies to transform living systems. Some of the decisions made regarding the development and use of these technologies have not paid sufficient attention to their broader social and ethical dimensions. One area of deep concern is the patentability of living organisms. The present review of Article 27(3)(b) of TRIPS touches directly upon this area of concern. In its present form Article 27(3)(b) amongst other things allows for the patentability of plants, plant varieties and animals. Its terms directly affect the economic, social and cultural aspects of developing states particularly those of Africa which are custodians of biological stock and associated traditional knowledge. African countries have now an opportunity to develop common negotiating positions and strategies for this review, future TRIPS reviews, present and future reviews of other WTO agreements (e.g. the Agreement on Agriculture) as well as negotiating objectives in any round of trade talks. In their efforts at developing and adopting positions for the review of Article 27(3)(b), these countries should give consideration to the following: 1. potential cross-linkages between this Article and other provisions of TRIPS (e.g. geographical indications), as well as cross-linkages between TRIPS and other WTO agreements; 2. the need to avoid negotiating bilateral treaties on these matters because such treaties tend to favour states with the most bargaining power and negotiating experience; 3. that the Agreement establishing the WTO recognizes the principle of sustainable development and the need to develop and implement the world's trade regime in a way that gives equal recognition to the needs of all its members; 4. that as Contracting Parties to the CBD they have established a set of obligations and principles to assert their sovereign rights over genetic resources, and to protect and promote the rights of their traditional and local communities; and 5. that they now have the challenge of ensuring that the WTO regime gives more than symbolic regard to the principle of sustainable development and provisions of the CBD and related international instruments such as the International Undertaking on Plant Genetic Resources and UPOV. Next Steps In light of the observations made at the Conference the following steps could be taken to ensure that African countries participate in an informed way in the review of Article 27(3)(b): (1) Informed consultations at the national level should be organized by various groups, bringing together governmental trade, agriculture, intellectual property and CBD negotiators; (2) Existing regional bodies such as the Organization African Unity (OAU), UNECA and ARIPO, international agencies such UNEP, ACTS, WIPO, IPBRI, FAO, international scholars and a variety of other entities should be quickly mobilized to develop common African negotiating positions and strategies for the review; (3) Efforts to raise to awareness of the issues associated with the TRIPS-CBD interface must continue as a matter of priority. In addition, inter-agency mechanisms (e.g. inter-ministerial working groups) should be established to ensure national policy coherence and consistency in the participation of African states in the CBD Conference of Parties and WTO fora; and (4) Efforts should be made to build an indigenous capability to gather and analyse data on a wide range of public policy issues emerging from the inter-linked complexities of global regulatory regimes. These may allow the countries to respond and influence quickly and flexibly to the changing dynamics of these regimes; African Centre for Technology Studies P.O. Box 45917 Nairobi, Kenya Tel: (254-2) 52 14 50 or 52 14 55 Fax: (254-2) 52 10 01 Email: acts(at)form-net.com